Frequently Asked Questions about the Illinois Probate Process

In most instance, after a person dies in Illinois, the decedent’s estate goes into probate.

When Does Probate Apply?

In most cases, a decedent’s estate will go into probate after he or she dies. Generally, the formal probate process is necessary in Illinois if:

• The estate consists of assets that the decedent owned individually (not jointly); and
• The value of all estate assets, together, exceeds more than $100,000. Certain assets do not need to go through probate, however, including:
• Assets held in a trust (such as a living trust)
• Assets owned in joint tenancy or tenancy by the entirety
• Assets subject to a beneficiary designation (such as retirement accounts or life insurance policies)
• Real estate subject to an Illinois transfer-on-death instrument.

Probate applies whether a decedent leaves a will or dies intestate (without a will). While a properly drafted will does not exempt a decedent’s estate from probate, as explained in further detail below, the probate process will be significantly less costly and time consuming with a will than without one.

What Is a Small Estate Affidavit?

If the total value of the decedent’s estate is less than $100,000 and does not contain any real estate assets, a formal probate process is not required. Instead, those beneficiaries who stand to inherit the decedent’s assets can submit an affidavit (sworn statement) to claim their inheritance. The standard small estate affidavit is a brief form that can be completed by providing basic information about the decedent and attesting that no probate proceedings are in place. A copy of the death certificate must be provided with the affidavit, along with a copy of the will if the decedent had one.

How Does the Illinois Probate Process Work?

If there is a will, the named executor will file a petition with the probate court. If there is no will, the court will name an administrator for the estate. Notice will be sent to the decedent’s heirs, notifying them of the probate proceedings. Notice will also be published in a local newspaper to notify creditors of the probate proceedings. As an experienced estate planning lawyer, Marc Blumenthal knows the ins and outs of the Illinois probate process and, in this e-book, he answers some of the most frequently asked questions about the Illinois probate process.

If there are no problems with the will, the court will approve the named executor, who will then distribute the assets pursuant to the terms of the will. If the decedent died intestate, the administrator will generally be required to post a bond and the court will direct distribution of the assets pursuant to state law.

During the probate process, federal and state tax returns must be filed and the executor/administrator must pay the necessary federal and state estate taxes.

Once all assets have been distributed, all debts have been paid, any disputes have been resolved, and the claims period has expired, the executor/administrator will submit to the court a final accounting showing how the estate assets were handled. Thereafter, the probate estate can be closed.